Adler v. Metropolitan Elevated Railway Co. — 61 N.Y. Super. Ct. 85

Majority

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LEOPOLD ADLER, Respondent v. THE METROPOLITAN ELEVATED RAILWAY COMPANY, et al., Appellants.

Headnote

Absolute injunction requiring defendants to take down portion of elevated railway station projecting into side street—Strict construction of statutes authorizing elevated railway structure in certain streets—When projection of two feet beyond house line into side street not too trifling to justify injunctive relief.

In an action to secure relief by way of injunction and incidental rental damages against the defendants’ elevated railway in First avenue in the city of New York, it was shown that plaintiff was the owner of premises situated on the southeast corner of First avenue and Eighth street; that the station and platform of the defendants’ elevated railway at First avenue and Eighth street was immediately in front of said premises, and that said station and the columns supporting it projected about two feet beyond the easterly house line of First avenue into Eighth street. The trial court directed the entry of a judgment enjoining the further maintenance and operation of defendants’ railway and station in front of said premises, awarding a certain sum as damages for past trespasses and providing that the injunction should not be operative as to the structure and portion of the station in First avenue in case defendants, within a time specified, paid to plaintiff the sum of $5,000, adjudged to be the value of easements taken, but directing defendants within a certain time to take down and remove such portion of said station as projected into Eighth street beyond the easterly house line of First avenue.

Held, that the defendants can exercise only such power as the Legislature has given them ; that when the route is designated the defendants must keep the whole and every part of their structure, of whatsoever nature the same may be, within the confines of the line. The onus was upon the defendants to show some grant which permitted them to diverge from the line of their route into Eighth street and erect a station projecting two feet beyond the easterly line of First avenue. No such permission was shown, and that portion of the structure must, therefore, be assumed to have been built and maintained without the semblance of right (not as a temporary privilege but permanent erection) and the court below properly directed its removal.

In the construction of grants of franchises such grants are generally construed most favorably to the public and most strongly against the.

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grantee ; nothing as a rule passes except what is expressed in unequivocal language. It follows, from the application of this rule, that as Eighth street was not included in the route designated by the rapid transit commissioners, and was not essential to the enjoyment of the franchise, it is, therefore, to be regarded as excluded.

The maxim Be minimis non curat lex is never applied to the positive and wrongful invasion of another’s property. The degree is wholly immaterial. Two feet of land in a thickly populated portion of a city is not so trifling as to deny the injured party the legal remedies necessary or proper for asserting the right of property thereto or to redress any trespass thereon.

Held, that the evidence satisfactorily sustains the findings of the court below both as to past damages and the value of the easements taken by the railway and station in First avenue.

Before Freedman and McAdam, JJ.

Decided May 2, 1892.

Appeal by the defendants from a judgment entered at equity term, awarding the plaintiff $1,250 damages, and restraining the defendants from the further operation of their road, in front of the plaintiff’s premises, No. 132 First avenue, unless within a time fixed by the decree they pay to the plaintiff the sum of $5,000 adjudged to be the value of the easements taken, and directing the removal of such portion of their station as extends into Eighth street.

The facts are sufficiently stated in the head note.

Davies & Rapallo, attorneys, and Julien T. Davies, and Brainard Tolles of counsel, for appellants, argued :—

I. The amounts fixed by the trial judge as past damages and as the value of plaintiff’s easements are excessive and unjust and altogether unsupported by legal evidence. There are decisions of this court, which show that it is quite possible for the award to be so high that there is a total failure of evidence to support it. Sperb v. Metropolitan El. Ry. Co., 60 N. Y. Super.

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Ct. ; Cunningham v. Manhattan Ry. Co., 37 N. Y. St. Rep., 366 ; Siefke v. Metropolitan El. Ry. Co., 39 Ib., 365. In the case last cited, the record weighed nearly two pounds and contained several thousand folios of testimony, yet it was held insufficient to sustain the judgment. It is not in the abundance of words, therefore, that a legal basis can be found for taking money from one citizen by judicial process and giving it to another. Such basis can be found only in fact, which by some fair process of reasoning, and not by misrepresentation or distortion or error of law, can be deemed to show actual damage. The question to be determined is whether the net effect upon this property of the existence and operation of the railroad has resulted in actual damage to this plaintiff. Plaintiff’s interest in this, property relates solely to the income produced by it. If the income would be less with the railroad and station removed, then there is no legal basis for this judgment. Somers v. Metropolitan Elevated R. Co., 59 N. Y. Super. Ct., 585 ; Bohm v. Metropolitan Elevated Ry. Co., Ib.; Newman v. Metropolitan Elevated Ry. Co., 118 N. Y., 618 ; Roberts v. N. Y. Elevated R. Co., 128 Ib.; Matter of Brooklyn El. R. Co., 55 Hun, 165 ; Doyle v. Metropolitan El. Ry. Co., 15 Daly, 473 ; Gray v. Manhattan Ry. Co., 35 N. Y. St. Rep., 32 ; Brush v. Metropolitan El. Ry. Co., 26 Abb. N. C., 73 ; Welsh v. N. Y. El. R. Co., 35 N. Y. St. Rep., 35 ; Purdy v. Metropolitan El. R. Co., 36 Ib., 43.

II. The trial judge erred in requiring defendants to shave off the easterly wall of their Eighth street station so as to bring it within the lines of First avenue. The easterly wall of defendants’ station projects about two feet beyond the easterly line of First avenue. The trial judge awarded an unconditional injunction requiring defendants to remove this portion of the station. To this provision defendants excepted. This portion of the judgment we contend to be erroneous for seven different

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reasons: (1) Because the defendants had the same right to maintain this portion of the station that they had to maintain the rest of the station. (2) Because the maxim de minimis non curat lex applies. (3) Because plaintiff showed no special damage. (4) Because no cause of action based on lack of legislative authority was pleaded. (5) Because of the great public inconvenience that would be caused. (6) Because the injunction was sought in bad faith for the purpose of harassing defendants and not to protect plaintiff’s own rights. (7) Because the plaintiff’s laches and acquiescence was a bar to obtaining an absolute injunction. The court, after enumerating the various statutes and proceedings from which defendants’ right to build and maintain their railroad was derived, has found as follows: “ Defendants were'also authorized and required by said statutes, and by the proceedings of said commissioners, duly had thereunder, to erect stations at convenient points along their route, and for that purpose were invested with a reasonable discretion in the choice of the location of said stations.” The legality of investing defendants with such discretion was adjudged by the Court of Appeals in Matter of Kings Co. El. R. Co., 112 N. Y., 47 ; See also Stirn v. Metropolitan El. Ry. Co., 21 N. Y. St. Rep., 41 . The principles which should guide the exercise of that discretion are laid down in the case first cited at page 59 : “ Of course it was not necessary to direct that stations should be built, for without them no capital would construct the road, nor to say that, in the main and as a general rule, they should be built at the cross-streets for the interest of the company and of the public would concur in that.” And in Ryan v. Manhattan Ry. Co., 121 N. Y., 126 , the same idea was still further expressed as follows (p. 131): “ The locality of the stations is determined by the public convenience. The fundamental law to which the elevated railroads owe them existence required them to

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be sufficient and suitable to accommodate public travel. They must not be too far apart or too few in number, and must, ordinarily, be placed at street-crossings. There only do they gain sufficient room and light and convenience of access.” What is the use of placing stations at street-crossings in order to gain room, if the law erects an invisible and impassable barrier across the intersecting streets which prevents the use of any portion of such streets either for stairways, stations or approaches ? It must be remembered that the law which is to be interpreted and which the Court of Appeals had in mind in rendering the decisions to which we have referred, was a general law governing the establishment of stations along the whole route, not alone on wide avenues but also on very narrow streets. The railways authorized by the rapid transit commission were intended to be constructed on three different classes of streets. The first were streets less than 36 feet in width, the second those between 36 feet and 55 feet, the third, those over 55 feet in width. On all these streets stations were likely to become necessary. The 46th requirement is: “ Each station shall have ample space, under cover, to accommodate the passengers.” How could this requirement be complied with in narrow downtown streets, unless the„railroad companies were authorized to make use of such portions of the cross-streets as were reasonably necessary for that, purpose ? The rapid transit commissioners well knew, when they framed these requirements, how the problem had been solved in the case of the then existing stations on the west side. Take the case of the important station at Greenwich and Rector streets. Greenwich street, at this point, is about fifty feet wide. How could a station capable of accommodating the public be provided without extending into the cross-streets ? And is the station, therefore, illegal ? Precisely the contrary was held by this court with reference to that very station in the case of

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Glover v. Manhattan R. Co., 51 N. Y., Super. Ct., 1 . In that case Judge Ingraham, instead of granting an absolute injunction against the portion of the station which was in Rector street, granted an injunction with opportunity to condemn. This was an adjudication that that portion of the station was lawful, so far as the public authority to maintain it was concerned. No ground exists for an absolute injunction in this case which did not equally exist in the Glover case. It may be justly claimed that where a duty is imposed by statute upon a railroad company, the company is impliedly vested with such powers not expressly withheld nor foreign to the general scope and purpose of its creation, as are reasonably necessary to the performance of the duties imposed upon it by the statute. N. Y. C. & H. R. R. Co. v. Kip, 46 N. Y., 546 . While statutes granting powers to corporations should be construed strictly, they should not be so literally construed as to defeat the objects for which they are enacted. Where the question is one affecting solely the public right, and the point in dispute is whether the public consent has been given to the substitution of one public use for another public use of a street, there is no particular occasion for applying the rule of strict construction. It is be remembered that the question attempted to be raised by plaintiff as to the authority to maintain the portion of the station which extends into Eighth street is raised by him in virtue of his right as a member of the public, and not in virtue of his right as an owner of private property. That he has no standing to raise the question in the latter capacity appears from the follow-consideration : Under § 17 of the Rapid Transit Act, defendants have undoubted authority to condemn plaintiff’s entire property, lot and buildings, and easements and all, for station purposes. So that, merely by virtue of the ownership of that property, he can hardly claim to dispute their right to acquire, upon making due com

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pensation, such an infinitesimally small fraction of his easement, as is taken by the rear wall of this station. Plaintiff, then, so far as this portion of the judgment is concerned, has no standing in court, except as a representative of the public right. The statutes involved are to be construed precisely as they would be construed in an action brought by the attorney-general on behalf of the people. Would there be in such an action any reason for subjecting these statutes to so strict a construction as is here claimed ? It is apparent that there is here no such opposition of interest between the public and the corporation as calls for an application of the rule of strict construction. The interests of the public and of the abutting owners and of the corporation are identical, and all point to one course. That is to build the stations at the intersection of the cross-streets, and as nearly square in form as possible. This is the form which is safest and most convenient for the public, and which affords the maximum amount of area under cover with the minimum obstruction of light and air and the minimum cost of construction. A long, narrow station may obstruct ten times as much light and air, and cost twice as much to build as a square station projecting a few feet into the cross-street. There is, therefore, nothing in the circumstances to justify an application of the rule of strict construction. Such a rule is appropriate to the construction of a grant of lands, where the grantor must lose what the grantee gets. It is appropriate to the construction of a grant of the power of eminent domain, because the grantee takes in derogation of the common law. But where the interests of all parties are in harmony, where there is no particular mischief to be guarded against, and where the question relates merely to the substitution of one public use for another, the construction to be given the statute should be fair and reasonable and in aid of the general purpose of the enactment. The plaintiff’s argument rests solely upon

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the fact that the commissioners designated a route for the railway, and that Eighth street was not included in the route. It is not denied that the rapid transit commissioners had power to permit the location of the stations in the side streets. It is not denied that they vested the defendants with a general discretionary power as to the location of the stations. It is not contended that that power has been unreasonably or unwisely exercised. But the claim is, that because Eighth street was not included in the route designated by the commissioners, therefore, the portion of the station which projects into it is necessarily illegal. No one would suppose from the language of the commissioners’ requirement that in fixing the route of the railway, they intend to place any limitation on the location of stations. The route, on its face, does not purport to do more than to define the course of the tracks upon which trains were to move. The authority to erect stations was a thing altogether apart from and supplemental to the designation of the route. The interests of all parties demanded that the company should be left free to place its stations at-corners where experience showed that they were convenient for the public use and beneficial to the adjoining property, rather than in places designated by the commission, where, perhaps, they might prove to be unwelcome to the abutting owners and of little use to the public. It was therefore necessary, in order that the company might enjoy this liberty, harmful to no one and beneficial to all, that the authority to locate stations should be general and unlimited, subject only to the requirement that no more space should be occupied than was reasonably necessary. In granting such general authority it was impossible to anticipate at what particular cross-streets the stations would be placed, or to what extent, if at all, the accommodation of the public would require such cross-streets to be made use of. The number of passengers using this particular station has

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increased 250 per cent, since it was opened, and if the same rate of increase were to continue indefinitely in the future it might, at some time, become necessary to enlarge the station instead of curtailino- its dimensions. The mere failure of the commissioners to include Eighth street in the route has therefore no bearing or significance whatever. The question was one which in its nature had to be disposed of generally and not specifically. The provisions of the rapid transit act in respect to stations have been the subject of a uniform interpretation by the public and municipal authorities for a long' period of years. This is manifest from the finding: “ Thirty-fifth: Said railroad and station were constructed, and have since been maintained and operated with the consent and by the authority of the mayor, aldermen and commonalty of the city of New York.” When it is remembered that the city of New York has the legal title and custody of Eighth street, this finding will be seen to have an important bearing as showing the actual interpretation which this statute has received from those charged with its execution. This interpretation has extended not only to this particular station but to many others throughout the city. The application to most of these stations of the strict rule contended for by the present plaintiff would result not only in great public inconvenience, but also in a far greater interference than at present with the light and air of abutting owners, since if the stations are to be driven out of the cross-streets it will become necessary to lengthen them on the ends so as to afford that degree of accommodation to the public which the law requires. It should be borne in mind that this well-settled interpretation of the rapid transit act is not confined to the railway companies or to the public and municipal authorities. It has been shared by the courts and by the abutting property owners almost universally. Judicial notice may be taken of the fact that very many judgments have been rendered by

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this court and other courts in this city, in reliance upon which the elevated railway companies have paid large sums of money for the right to maintain their various stations, including those portions which extend into side streets. It is true that the present plaintiff was no party to these judgments, yet they show a well-settled judicial construction of the act in question which ought to he of .great weight in determining a matter of public right. Upon a matter oí private right plaintiff might perhaps claim that precedent should he disregarded. But when he appears, under suspicious circumstances, as a voluntary and unaccredited champion of the public right, the long-continued and well-marked acquiescence of the public itself in a particular construction of the statute, which is obviously for the public benefit, ought not to be left out of account. An interpretation of a public statute which is not only contemporaneous hut long-continued and well-settled; which has been acquiesced in and fostered not only by the executive but by the judicial officers of the State; in reliance upon which large sums of money have been expended and important interests have grown up ; which is beneficial to all parties concerned, and is reasonably necessary to effect the general purpose of the act; which is opposed neither to any express enactment nor to any consideration of public policy, nor to any principle of justice or equity; and which is sanctioned by long custom, many precedents, and by the express language of the Court of Appeals ■—such an interpretation, we say, ought not to be lightly set aside to gratify private greed ora professional grudge. Power v. Village of Athens, 99 N. Y., 592 ; People v. Lacombe, 99 Ib., 43; People v. Dayton, 55 Ib., 367; Easton v. Pickersgill, 55 Ib., 310 ; Smith v. People, 47 Ib., 330; People v. Commrs. of Taxes, 6 Hun, 109 ; Fort v. Burch, 6 Barb., 73 ; DuBois v. Brown, 1 Den., 317 ; Hall v. Supervisors, 66 How. Pr., 330 ; VanLoon v. Lyon, 4 Daly, 149 ; Brown v. U. S., 113 U. S.,

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568 ; In re Warfield, 22 Cal., 51 ; Morgan v. Crawshay, L. R., 5 H. L., 320. Assuming that the portion of the station in question is without authority of law, and that plaintiff is entitled to represent the public in attacking it, we submit that the evidence shows that the interference with the public right in Eighth street is too slight and trivial to be made the basis of an injunction. Obviously plaintiff stands in no better position to attack the portion of the station in question, on the ground of illegality, than the attorney-general would occupy in a suit brought for that special purpose on behalf of the people. Plaintiff’s demand cannot borrow vitality from the associated claim for compensation for taking his private property. If compensation for private property is sought the injunction should be alternative in form. If the public right is to be vindicated by an absolute injunction then substantial injury from the particular portion of the station sought to he enjoined must be shown. In this case the projection beyond the easterly line of the street is almost imperceptible, and was not in fact perceived by the plaintiff until a year after he bought the property. It does not and cannot interfere with any public use of the street in the slightest degree. Neither is it shown to interfere to any appreciably extent with the light or air of abutting property. There is plenty of evidence in the case of interference with light and air by the structure in First avenue, but there is none which applies to this small portion of the station which projects into Eighth street. The court has not found that any such interference results from that part of the station. It is not in front of any window, and so cannot cut off any light or air directly ; while as far as concerns light and air coming obliquely into the Eighth street windows from the west, they would be cut off in any event by the portion of the station which is in First avenue and which is concededly legal. So that here is a perfectly harmless structure, for maintaining which

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neither the public nor the abutting owner could recover more than nominal damages. Against such structure an injunction should in no event issue. McLaury v. Hart, 121 N. Y., 636 , 643; Genet v. D. &. H. Canal Co., 34 N. Y. St. Rep., 247 , 254; Purdy v. Manhattan R. Co., 36 Ib., 43; Jerome v. Ross, 7 Johns. Ch., 315 ; Drake v. H. R. R. R. Co., 7 Barb., 508 ; People v. Met. Tel. Co., 31 Hun, 596 . The case last cited is an exact parallel to the action at bar. The action was to restrain the completion of a telephone line in Twenty-first street, to remove the poles already erected and for damages. The action was tried by a jury who gave a verdict for six cents damages. Upon that verdict the court adjudged the poles a nuisance and ordered their removal. The facts show that plaintiff sustained no special injury from the two feet of station which projects beyond the easterly line of First avenue. There is no allegation of special injury from this source in the complaint and no finding of it in the decision. Such a finding was essential to give plaintiff any standing in court, to raise the question of public right. There is a long line of authorities, well-known to the court, which hold that in order to maintain an action for an injunction- against a public vnuisance it is necessary in any event that the complainant should have been specially injured. A few typical cases are Fort Plain Ridge Co. v. Smith, 30 N. Y., 44 ; Doolittle v. Supervisors, 18 Ib., 155; Lansing v. Smith, 8 Cow., 146 ; Dougherty v. Bunting, 1 Sandf., 1 . Within the' principle of these cases, plaintiff cannot sustain this portion of the judgment on the ground of a public nuisance. He has not merely failed to show a special injury, but he has failed to show any injury whatever from the portion of the structure in question. The evidence showed that the particular station in question was used by about ten thousand passengers daily. To shave off the rear wall of this station would require a complete remodeling of the station, inside and outside.

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Such changes would require a virtual closing of the station for a short period, and would impose discomfort and inconvenience upon passengers for a much longer period. The result of the operation would be to permanently diminish the space provided for the accommodation of a rapidly increasing passenger traffic. Such a change would be of absolutely no advantage to the public at large. And even to the plaintiff it could make no perceptible difference. His light and air would be no greater in amount nor better in quality; his facilities for access would not be increased. An injunction can be rightfully demanded only for the purpose of protecting some legal or equitable right of the plaintiff. When it appears that it is not sought for that purpose but for some ulterior end, the injunction will be refused. Kimball v. Hewitt, 17 N. Y. St. Rep., 743 . The slightest consideration of the circumstances of the case at bar will render it morally certain that this injunction has been obtained not for the purpose of protecting the plaintiff’s rights but for the purpose of harassing and injuring the defendants. The great hardship to the latter from this judgment, the absence of all legitimate advantage to the plaintiff and the existence of another disputed question between the same parties with respect to the damage done by the structure in First avenue, all combine to render it extremely probable that this demand for an absolute injunction has been made not for any legitimate purpose but only to be used as a weapon wherewith to terrify defendants into the payment of large sums of money as compensation for damages which have never been sustained and which cannot be proved.

III. The learned trial judge erred in refusing to find that there were any benefits to plaintiff’s premises from defendants’ railroad. The defendants have the same right to have benefits considered in respect to the amount of damage as they have in respect to the exist

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ence of damage. The method pointed out by the Court of Appeals for raising the question, is by proposing just such requests to find as were proposed in this case. It may be regarded as certain that the Court of Appeals will never tolerate a rule which absolutely prevents the raising of this question ; and to say that these exceptions are to be disregarded is substantially to lay ,down that rule.

E. B. & C. P. Cowles, attorneys, and Charles P. Cowles, and Justus A. B. Cowles of counsel, for respondent, argued:—

I. The right to abate a nuisance or to restrain its maintenance, is not lost by reason of the purchase of the property injuriously affected subsequent to the creation of the thing which constitutes the nuisance.

II. The Acts under which the Metropolitan Elevated Railway Company was incorporated and the proceedings had thereunder, do not empower that company to occupy any portion of Eighth street with its railway station or depot structure. Mattlage v. N. Y. El. R. R. Co., 67 How. Pr., 232 ; Matter of Metropolitan El. Ry. Co. (in re Jones), N. Y. Law Journal, January 26, 1891; see page 1024, middle of column 2. Mr. Adler’s property was one of the parcels included in the condemnation proceedings entitled Matter of Metropolitan El. R. Co. (in re Jones). This same question was raised in these proceedings before Judge O’Brien, and was argued at length; the petition was dismissed as to Mr. Adler, expressly upon this ground. Should the court desire to examine this question anew, we respectfully submit the following : Chapter 885, Laws 1872, the original Act incorporating the Gilbert Elevated Railway Company, provides, in section 3, that the route of the railway and necessary sidings, stations, etc., should be ascertained, designated and established by a board of commissioners, who should designate and establish the same, etc. Several Acts were passed amending this one, but in no par

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ticular material to the present question (see Chapter 837, Laws 1873 ; Chapter 275, Laws 1874). Subsequently, in 1875, the rapid transit act was passed (Chapter 606, Laws 1875). Under this act commissioners were appointed, who located the route of the petitioner, designating and establishing the same, and also the sidings, stations, etc., as far and as particularly as the same ever have been designated. The route designated by the rapid transit commissioners, so far as is applicable to this case, is as follows : “ Thence along Division street-to Allen street; thence along Allen street and First avenue to Twenty-third street.” Inasmuch as the commissioners appointed under the rapid transit act fixed and established the route, etc., of the Gilbert Elevated Railway, afterwards called the Metropolitan Elevated Railway, it necessarily follows that the limitations contained in the rapid transit act applied to and limited the authority of the commissioners in designating such routes. Clearly they could not act beyond the scope of their authority as conferred by the legislature, and since the Metropolitan Elevated Railway Company bases its right to maintain its railway on the action of the rapid transit commissioners and their permission as designated in the route established, the corporation can carry its railway into no other street or any portion of a street not expressly included in the route designated by the rapid transit commissioners. Such was the express provision of the act under which the commissioners were appointed. “But no such corporation shall have the right to acquire the use or occupancy of public parks or squares in such county or the use or occupancy of any of the streets or avenues, except such as may have been designated for the route or routes of such railway and except such temporary privileges as the proper authorities may grant to such corporations to facilitate such construction.” Chapter 606, Laws 1875, § 26, sub. 5. This provision expressly limits the authority of the commissioners. The

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reference to the route applies of course to the whole structure, sidings, switches, stations, etc., as well as to the main track. We do not question the right of the Metropolitan Elevated Railway Company to build and maintain stations along its route ; the legislature has given it this authority and in any event it would follow as a necessary implication, but we do insist that the defendant can exercise only such power as the legislature has given it, and that, when an express provision is made confining the corporation to a route designated and established by commissioners appointed expressly for this purpose, such provision is to be construed strictly as ag'ainst the corporation : that when the route is designated, this provision means that the corporation must keep the whole and every part of its structure, of whatever nature the same may be, clearly within the confines, of such designated route. Stations, sidings and switches may be built on the line of the route, but they cannot be built off such route. When the commissioners designated the route as “ thence along Allen street and First avenue to Twenty-third street,” such designation referred in no way to Eighth street; it would be a violent supposition to imply authority to go into Eighth street from a grant of authority to occupy First avenue. This designation of route is just as much a part of the rapid transit act itself as if embodied in it and therefore, in determining the rights of the corporation thereunder, it should receive the same construction as if it were made expressly a grant of corporate power. It is an elementary rule in the construction of grants of franchises, that such grants are to be construed most favorably to the public and most strongly against the grantor; that nothing shall pass by such grants except what is expressed in unequivocal language, and that whatever is not unequivocally granted is deemed to be withheld, nothing passing by implication. Langdon v. Mayor, 93 N. Y., 129 , 147 ; Syracuse W. Co. v. City of Syracuse,

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116 Ib., 167, 178. Applying this rule of construction, it must follow that inasmuch as Eighth street is not included in the route designated by the rapid transit commissioners, it must be construed to be excluded, with the same effect as if the designation of the commissioners expressly forbade the use and occupation of Eighth street by the railway or any part1 of the railway structure. It makes no difference how small a portion of the street is occupied, the principle is the same. If the petitioner has no authority to occupy Eighth street it has no authority to occupy any portion of the street, however small it may be. This question of legislative authority is not to he measured by the quantum of the wrong. Either the defendant has a right to occupy Eighth street or else it has no right to do so, and whether it occupies one foot or one hundred feet makes no difference, when the question to he determined is as to its legislative authority to acquire this property. The question presented is whether the defendant has power to do what it seeks to do. Whether the legislature granted it the franchise, privilege or right to acquire property in Eighth street. To do this the corporation must be able to show a legislative warrant on which to base its corporate action. Matter of Niagara F. and W. Ry. Co., 108 N. Y., 375 , 383. Until this can be done the defendants must be compelled to remove that part of the railway, railway structure, station or depot station which extends into Eighth street.

III. The fee value of the easements taken by the defendants and the past damages as determined by the court áre both very reasonable and are less than the evidence warranted.

IV. No errors were committed on the trial, and there are no exceptions to the rulings upon the admission or the exclusion of evidence which warrant a reversal of the judgment.

The evidence satisfactorily sustains the findings of the court below both as to past damages and value of the easements. The only question requiring special mention arises on the part of the judgment which requires the defendants to remove that portion of their structure or station which projects into Eighth street.

The plaintiff does not dispute the right of the Metro-, politan Elevated Railway Company to build and maintain stations along its established route. The legislature has given it this authority, and in any event it would seem to follow by necessary implication. But he insists that the defendant can exercise only such power as the legislature has given it; that when the route is designated, this means that the corporation must keep the whole and every part of its structure, of whatever nature the same may be, within the confines of the line, and that although stations, sidings and switches may be constructed on the roadway, they cannot be built off such route. The plaintiff is correct in his contention. The railway company has no right whatever to appropriate public streets or highways to its use without legislative sanction, and even then is bound to make compensation to the abutting owners for any injury done to their property by reason of any interference which its structure may cause to their easements of light, air or access, or any depreciation in fee or' rental value resulting from the operation of its road. The onus was, therefore, upon the railway company to show some grant which permitted it to diverge from the line of its route into Eighth street, and erect a station projecting two feet beyond the easterly line of First avenue. No such permission was shown, and that portion of the structure must, therefore, be assumed to have been built and maintained without the semblance of right (not as a temporary privilege but permanent erection), and the court below properly directed its removal. This accords

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with the decision of Judge O’Brien in dismissing condemnation proceedings affecting the same property. N. Y. Supreme Ct., N. Y. Law J., January 26, 1891, p. 1024. In the construction of grants of franchises, such grants are generally construed most favorably to the public and most strongly against the grantee; nothing as a rule passes except what is expressed in unequivocal language. Langdon v. The Mayor, etc., 93 N. Y., 129 , 147; Syracuse W. Co. v. City of Syracuse, 116 Ib., 167, 178. Applying this rule, it follows that as Eighth street is not included in the route designated by the rapid transit commissioners, and was not essential to the enjoyment of the franchise, it is to be regarded as excluded. There is room for no other implication. The defendants urge that the interference with the public right in Eighth street is too trivial to be made the basis of a judgment for removal, on the principal of De minimis non curat lex. This maxim is never applied to the positive and wrongful invasion of another’s property. The degree is wholly immaterial. Seneca R. Co. v. A. & R. R. R. Co., 5 Hill, 175 . Two feet of land in a thickly populated portion of a city is not so trifling as to deny the injured party the legal remedies necessary or proper for asserting the right of property thereto or to redress any trespass thereon. We find no error, and the judgment appealed from must be affirmed, with costs.

Freedman, J., concurred.